Ryan’s paper pits James Madison against Thomas Jefferson in a debate about John Locke’s concept of prerogative. Locke defined prerogative as a fundamental law of nature and government, that in times of emergency the executive must claim extralegal powers. Prerogative raises several questions that Ryan explores. Do emergency powers violate the constitutional order? How can we best ensure that emergency powers are only claimed when they are truly necessary?

Madison conceptualized prerogative as internal to the constitution – prerogative stems from and serves the law. Madison believed that to sustain supreme authority, the constitution must grant legal backing to executive acts made in the name of self-preservation.

Jefferson did not share this view. Rather, Jefferson conceptualized prerogative as external to the constitution – an act that violates the constitution is illegal, regardless of the circumstances or claims of necessity surrounding it. Jefferson believed that the laws of necessity trump written laws, but, nonetheless, executive action taken for self-preservation departs from the constitutional order.

Ryan sides firmly with the Jeffersonian view of prerogative as external to the constitution. He argues that requiring a conscious executive decision to disobey the constitution and assume the risks of doing so provides the stronger means to ensuring the use of emergency powers only when confronted with truly exceptional circumstances.